from the wise-decisions dept

A couple weeks back we wrote about the somewhat odd decision making of an angry lawyer named Jason Lee Van Dyke, whom we'd also written about years ago for some spectacularly bad lawyering. This year he's also gotten really really pissed off at three (very different) people: Ken White, Asher Langton and Talib Kweli. The first two have appeared on Techdirt many times. Ken is a criminal defense and First Amendment lawyer. Asher has an astounding ability to sniff out frauds online. And Talib is a musical genius among other things. But, Van Dyke has spent months angrily lashing out about them on the internet (well, the lashing out at Kweli was more recent).

When we last checked in on him, he was threatening to add those three individuals -- plus the Huffington Post -- to a fairly obvious SLAPP suit that he had already filed in Texas against an Ohio-based publication called the Mockingbird. Lots of people had pointed out that Texas has a fairly robust anti-SLAPP law, which could lead to Van Dyke having to pay up -- and Van Dyke's response (not atypical from his earlier responses) was to lash out and threaten more lawsuits and to promise violence if he was sanctioned.

He then went so far as to contact Mockingbird's lawyer to ask for leave to amend the existing lawsuit with the three individuals mentioned above, plus the Huffington Post (which had also written about the lawsuit).

So... despite the promises to add more names to the lawsuit, that didn't happen. And despite the claims that he was going to just keep fighting the lawsuit... a few days later, Van Dyke agreed to dismiss the suitwith prejudice, and the judge agreed. Gerry Bello at Mockingbird has a post on this as well, which reveals that Van Dyke told Bello's lawyer that the reason for the dismissal was that his "immediate supervisor at the company where I am employed" had "instructed" Van Dyke to dismiss the case. It is not clear where Van Dyke is currently employed or who told him to do this. Van Dyke has generally held himself out as being self-employed as a lawyer.

One hopes that this is actually Van Dyke recognizing that repeated threats of both violence and lawsuits against critics is not a particularly wise idea. I'm not holding my breath that this is the case, however. In the meantime, we've heard from others that various bar complaints have been filed against Van Dyke, and given his actions and statements, at the very least you have to wonder how much longer he'll be able to practice law, no matter who "employs" him.

from the defamation-law-as-a-weapon dept

One of the important elements of the First Amendment, and its protections of opinion, is that it opens up all kinds of debates -- from the political to the scientific. Indeed, the very nature of scientific research in academia is one of constant debate between researchers with different viewpoints. This has gone on for centuries. And, yet, it appears that at least one scientist has apparently decided that the standard nature of scientific debate is now defamatory. He's almost certainly wrong, but the details of this case are disturbing. Stanford professor Mark Jacobson apparently was less than happy to see criticism from another scientist, Christopher Clack. Rather than just respond with another paper, Jacobson has sued Clack and the National Academy of Sciences for defamation in the Superior Court in Washington DC (more on that in a moment).

The complaint is worth reading as it lays out the path to this dispute in a pretty straightforward way. Jacobson and some other authors published an article in PNAS, the Proceedings of the National Academy of Sciences in late 2015. Early in 2016, Clack communicated with Jacobson via phone and email to better understand some of the assumptions in the original paper. Clack (and others) then published a "rebuttal" article (also in PNAS) to Jacobson's original article. Jacobson, from the complaint, appears to be upset that Clack never requested "a time series of model output from the Jacobson Article" or any information other than what was discussed via phone and email in early 2016.

Upon being notified by PNAS of Clack's rebuttal article, and being asked if he'd liked to respond in a letter that PNAS would also publish, Jacobson claimed that Clack's paper had 30 false statements and "five materially misleading statements," and asked PNAS to withdraw the article. PNAS's deputy executive editor responded to ask if he could send Clack and his co-author's Jacobson's concerns, leading Jacobson to write a "slightly updated" list of grievances and specifically asked PNAS to forward them to Clack and the others. For whatever reason PNAS chose not to do so which is its right. There was some more back and forth before Jacobson realized that his list of complaints had not been forwarded, which seems to have greatly upset Jacobson (all the bold is directly from the complaint itself):

On May 5, 2017, in the face of NAS's decision to publish the uncorrected version of the Clack Article in PNAS, Dr. Jacobson against contacted Mr. Salsbury and sent yet another document regarding the requested corrections, this time pointing out the errors line-by-line. Exhibit 9. Mr. Salsbury replied to Dr. Jacobson later that same day, stating, "We discussed your recent emails with the Editor-in-Chief and have sent your critique received today to the authors this morning. We provided your previous response to a Board member who took it into consideration during the two rounds of revisions since you last saw the manuscript. The Board member did not to (sic) send your response directly to the authors at that time." ... Thus, for two months NAS led Dr. Jacobson to believe that NAS had forwarded his list of requested corrections of false and misleading statements to the authors of the Clark Article when in fact it had not.

And, I mean... so what? Just because Jacobson doesn't like Clack's article, or thinks there are errors in it, it doesn't magically give him control over the editorial process of PNAS. That's just not how it works. However, Jacobson appears to be arguing that only his version of things can be true and the disagreement is defamatory. That's also not how it works. Scientific debate often involves different interpretations and different opinions. And sometimes people get things wrong or sometimes they portray things in a misleading way. But none of that is defamation.

Indeed, Jacobson admits that once Clack and the others had seen his 35 complaints, some more changes were then made to the article (though minor ones that only addressed a few small points). However, once again, the First Amendment absolutely allows people to be wrong. Or to disagree over certain items. That's kind of the hallmark of academic debate.

There are a number of other just... weird... arguments in the complaint, which itself reads like an airing of grievances, rather than a typical defamation complaint. As Jonathan Adler notes:

Jacobson claims the NAS violated its conflict-of-interest disclosure policies by failing to note that some of the contributors to the Clack, et al., paper are “advocates” for various policy positions. Yet Jacobson’s own paper doesn’t list his own policy advocacy as a potential conflict of interest either.

Throughout the filing Jacobson seems to insist that there are certain standards that Clack and PNAS must follow, despite no actual basis for them to have followed those standards. As another example of this, Jacobson's complaint spends a fairly ridiculous amount of space arguing that Clack's article should not have been published as an "Article" but as a "Letter." Here's just one paragraph of a many paragraphs-long complaint about this point:

The Clack Article does not contain "results of original research of exceptional importance," and, therefore, is not a "Research Report." Not only did none of the Clack Authors request output data from the Jacobson Article, the most fundamental first step in performing research on another scientific study, until three weeks after publication of the Clack Article, and not only did the Clack Article contain numerous false facts that the authors and NAS were aware of and never corrected, but the Clack Article is also in the nature of "comments that allow readers... to address a difference of opinion with authors of a recent PNAS article." Exhibit 1 at p. 1 (describing a "Letter").

Again: just because Jacobson wrote an earlier piece, it doesn't magically give him the power to dictate someone else's publication criteria. Jacobson really seems to think he gets to set the terms by which others can respond to him and how the journal he published in handles those responses. That's not how it works. And who knows: I'm willing to grant the premise that perhaps Jacobson is 100% right about Clack's article being terrible. But, that doesn't matter. That doesn't magically give you the power to demand these kinds of things and then sue over it.

Incredibly, a few paragraphs later, Jacobson more or less undermines the entire line of arguments and in the process any hope for the defamation claim:

As noted supra, "Letters" are limited to 500 words and 10 citations, and they must be submitted within six months of publication of the article to which they respond.... The Clack Article failed to meet these criteria. It is significantly more than 500 words in length. The article itself is six pages long, single-spaced and includes a 13-page, single-spaced Supporting Information, which is not allowed with a Letter. With 27 citations in the main text alone, the Clack Article far exceeds the 10-citation limit for a Letter. Finally, the Clack Article was not submitted for review until June 26, 2016, missing the six-month deadline for letter submissions by almost three weeks. Even if NAS had overlooked the lateness of the Clack submission, it should not have ignored the remaining criteria for Letter submissions.

So, uh, that's kind of a weird paragraph to include in the part where you insist Clack's article should have been a letter, since Jacobson just explained why maybe it wasn't a letter at all. And, hey, the 27 citations? That certainly suggests that Clack's article is full of the citations on which he based his conclusions, which would suggest that Clack provided the factual basis for the interpretation presented. Multiple defamation cases have failed when the defendant has shown that they provided the factual basis. Jacobson here seems to be admitting that Clack showed his work, which strongly cuts against defamation.

Another complaint by Jacobson: how dare PNAS allow all 21 authors that Clack listed be included as co-authors:

The fact that NAS permitted the Clack Article to list all twenty-one co-authors, eighteen of whom admit not to having performed research, instead of only the three who "contributed substantially" to the work is another violation by NAS of its own policy for PNAS publications.

Right. So complain to PNAS for not following its policies. Don't sue them.

As for the "materially false statements," at best they look like disagreements, or possibly accidental mistakes in interpreting Jacobson's report. Jacobson makes a lot of fuss over the fact that in the email conversation he and Clack had a year earlier, he had responded to one of Clack's questions and Clack either forgot or ignored this in the article. But, it's hard to see how this reaches even the most fundamental levels of defamation.

Basically, all of this just looks like Jacobson is really mad. And maybe he's right to be mad. But that doesn't give you the right to sue.

This seems like a very clear SLAPP suit, in which the intent is to stifle public discourse and scientific debate. And that takes us to the question of why file this in Washington DC when Jacobson is based in California and Clack is in Colorado. It's true that NAS is in DC, but it also seems likely that this is fallout from another defamation lawsuit involving climate scientists -- the one that climate scientist Michael Mann filed against some publications, reporters and think tankers over their criticism of his research. Late last year (after more than four years in the courts), the District of Columbia Court of Appeals gave a very troubling ruling in that case, going against a ton of precedent concerning the First Amendment, protected opinion and anti-SLAPP rules.

The whole situation is unfortunate and remarkable. It's no secret that academic disputes can get nasty, but filing a defamation lawsuit, demanding $10 million, just because you don't like a response to your own research is, simply, ridiculous. As Michael Shellenberger wrote in discussing this lawsuit, this move is bad for science:

Scientists and energy analysts should not be intimidated. We must stand up to bullies. We urge all lovers of nature and science to join us in denouncing this unprecedented and appalling attack on free inquiry.

I will add, finally, that this lawsuit saddens me personally. I debated Jacobson at UCLA and I believe he is a good person in the grip of a bad idea. I encourage him to drop the lawsuit.

Once again, this kind of thing is yet another reminder of the need for a federal anti-SLAPP law. There was talk of one being introduced in Congress earlier this year, but to date it has not appeared. As more and more of these kinds of cases pile up, the lack of a federal anti-SLAPP law to stop these kinds of silly lawsuits is glaring.

from the the-infamous-rico-slapp dept

We talk quite a bit about the problem of so-called SLAPP lawsuits around here. SLAPP standing for "Strategic Lawsuit Against Public Participation." It's a terrible acronym, but what it really means is generally the rich and powerful filing bogus lawsuits against the less powerful for the purpose of harassing and silencing them. That is, even if the plaintiffs recognize that they will lose, it's worth it to them to file the lawsuit anyway, because the process itself can be so destructive to the defendants. This is why anti-SLAPP laws are so powerful, allowing defendants to both get rid of such lawsuits quickly and to get back legal fees, thus minimizing at least some of the damage of SLAPP suits. Now, there are some lawyers who seem to be specializing in filing SLAPP-style lawsuits. One law firm that appears to be building up such a reputation happens to be President Donald Trump's personal law firm, Kasowitz Benson Torres. We've discussed how its founding and managing partner, Marc Kasowitz, had threatened to sue the NY Times over its reporting on women claiming Trump had touched them inappropriately -- a threat he failed to follow through on within the statute of limitations in New York.

However, others at Kasowitz's firm appear to be targeting the environmental movement with SLAPP suits, starting with Greenpeace. And, they've added a funky little twist to the traditional SLAPP suit -- the RICO SLAPP. Back in May of 2016, a company named Resolute Forest Products, represented by Kasowitz partner Michael Bowe, filed a massive (124 page) lawsuit against Greenpeace and a few others, claiming that Greenpeace is a fraud. Literally. Here's how the lawsuit opens:

“Greenpeace” is a global fraud. For years, this international network of
environmental groups collectively calling themselves “Greenpeace” has fraudulently induced
people throughout the United States and the world to donate millions of dollars based on
materially false and misleading claims about its purported environmental purpose and its
“campaigns” against targeted companies. Maximizing donations, not saving the environment, is
Greenpeace’s true objective. Consequently, its campaigns are consistently based on sensational
misinformation untethered to facts or science, but crafted instead to induce strong emotions and,
thereby, donations. Moreover, virtually all of Greenpeace’s fraudulently induced donations are
used to perpetuate the corrupted entity itself and the salaries of its leaders and employees.

It turns out that Resolute Forest Products (a Canadian logging company) is kind of upset that Greenpeace has been campaigning against the company, arguing that it's a "Forest Destroyer." The two organizations go back a ways -- and Greenpeace in the past did retract and apologize an erroneous statement about Resolute a few years back. But the lawsuit goes on at great length to claim that Greenpeace's actions are a form of racketeering that has cost Resolute $100 million in reputational value -- opening up Greenpeace to the potential of a $300 million penalty.

And, yes, here's where I'll point you to Ken "Popehat" White's IT'S NOT RICO, DAMMIT post, where he explains how almost no case is really a RICO (racketeering) case. And it applies to this one as well. While the case was originally filed in Georgia (which has a decent anti-SLAPP law, but one facing some challenges recently), it was later transferred to California, which has a very strong and well-established anti-SLAPP law. And, thus, last week the case was thrown out on anti-SLAPP grounds.

Whether or not you like Greenpeace or its methods is besides the point here. The issue is whether or not a company that is being targeted for protests can file a massive RICO lawsuit against an organization for its protests. And here, the judge said that's not how it works. The judge notes that the basic claims -- on which most of the rest of the claims rely -- of defamation don't pass the sniff test, as there's no actual malice shown (which is required for defamation of a public figure, which the court says Resolute is). It also points out that nowhere did Resolute show that any of the named defendants made "knowingly false statements." That... makes a defamation claim difficult.

The court also isn't impressed with Resolute trying to turn clear statements of opinion into pretend "facts."

In its quest to describe Greenpeace‟s statements as matters of fact instead of opinion, Resolute often takes an overly literal approach to obviously overemphatic speech. For instance, Resolute refers to a Greenpeace campaign that describes Resolute as a Canadian Boreal “Forest Destroyer.” ... Resolute‟s claim depends on construing the word “destroy” to mean “annihilate” or “eliminate completely.” In this vein, Resolute‟s expert witness Peter Reich states, “Resolute has not destroyed, and is not destroying, the boreal forest. Because almost all harvested stands grow back to boreal forest, Defendants‟ claims about Resolute‟s forest "destruction‟ cannot be true.”...

As any reader of Greenpeace's statements will know, these are not the only permissible constructions. The word “destroy” is a perennial instrument of hyperbole. See, e.g., Edward Barsamian, “Gigi Hadid Takes on the New Look of Destroyed Denim,” Vogue (Feb. 3, 2015) (on-line ed.) (https://www.vogue.com/article/gigi-hadid-style-destroyed-denim). The Vogue writer here does not intend to convey that Ms. Barsamian's jeans have been completely annihilated, but merely that they are “worn with deliberate tears at the knee” or “riddled with curious new holes.” Similarly, when the entertainment writer Shaunee Flowers states that “Kanye West destroys Wiz Khalifa on Twitter and it's epic,” she is not suggesting that Mr. West has actually eliminated Mr. Khalifa, but only that he has made disparaging comments about him on social media....

Yes. A judge in a RICO lawsuit about environmental protests is discussing Kanye West twitter battles. We live in such amazing times.

Resolute's attempts to include expert commentary on why Greenpeace is wrong, just leads the court to note that these are the kinds of things that people can disagree on, which makes it even more ripe for First Amendment protections:

The submission by Resolute of two expert declarations makes more manifest, not less, the degree to which the challenged statements are protected by the First Amendment. These declarations illustrate the extent to which the challenged statements (a) concern matters of public importance and (b) are subject to professional debate. For example, declarant Frederick Cubbage undertakes a review of the FSC‟s suspensions of RFP‟s certifications and concludes: “Resolute‟s 2013 FSC audits indicate possible bias. Audits of similar forests in similar situations should have similar outcomes. That did not appear to be the case for Resolute. An applicant in full compliance with relevant laws should be certified under any standard.” ... Greenpeace‟s expert, Keith Moore, disagrees with this analysis, noting that because “[t]he FSC certification system establishes a higher standard and a broader suite of requirements,” it is possible to comply with the relevant law and still be denied FSC certification. ... Accordingly, he concludes, “[i]t is also incorrect to state that a company that meets regulatory requirements is equivalent to a company meeting all FSC certification requirements.” .. After all, as Dr. Cubbage notes, “forest certification, generally, refers to a non-state market-based policy approach to achieving sustainable forest practices and development,” ... so by definition it will encompass more than “relevant laws.” The academy, and not the courthouse, is the appropriate place to resolve scientific disagreements of this kind. As the Seventh Circuit has said, “scientific controversies must be settled by the methods of science rather than by the methods of litigation.” Underwager v. Salter, 22 F.3d 730, 736 (7th Cir. 1994). For that reason, “[c]ourts have a justifiable reticence about venturing into the thicket of scientific debate, especially in the defamation context.”

The court is also not at all impressed by the RICO claims. Remember the Popehat admonition about just how difficult it is to ever properly prove RICO in court? Resolute fails. Miserably.

Resolute fails to meet these heightened pleading requirements. While Resolute‟s complaint lists reports authored by Greenpeace, and includes dates of publication in many cases, in many cases it does not identify the author of the reports, and it never identifies the “misconduct” or “specific content” that constitutes fraud in the reports.13 Much of Resolute‟s pleading is even less specific. For example, Resolute claims that the Defendant “processed millions of dollars in fraudulently induced donations,” without describing a single donor, donation date or amount, nor how the donation was fraudulently induced... As such, the defendants are not on “notice of the particular misconduct which is alleged to constitute the fraud.” ... These general allegations fall far short of Rule 9(b)‟s requirements, and Resolute‟s RICO claims are therefore dismissed.

There's also the claim of extortion as a part of the RICO claim. Again... nope:

Resolute fails to allege predicate acts of extortion under the Hobbs Act. There is no Hobbs Act claim because the Defendants have not obtained “property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). To show extortion, Resolute must allege that that Greenpeace demanded property from Resolute itself. Sekhar v. United States, 133 S.Ct. 2720, 2725 (2013); Scheidler v. Nat‟l Org. for Women, Inc., 537 U.S. 393, 404 (2003). In Scheidler, the Court held that the National Organization for Women (“NOW”) had not alleged extortion against activists who sought to shut down abortion clinics because although those activists sought to harm the clinics and NOW, they did not seek to obtain any property from such harm. 537 U.S. at 405 (“Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received something of value from respondents that they could exercise, transfer, or sell.”). Likewise here, even if Greenpeace sought to harm Resolute through Resolute‟s customers, it did not seek to obtain the business assets it sought to deprive Resolute of. Any alleged property transfer induced by fraud, coercion, or threats, moved between Greenpeace and its donors, or between Resolute and its customers. There was no alleged property transfer between Greenpeace and Resolute.

From there, the court moves on to the anti-SLAPP motion to strike. The analysis is short and straightforward. Greenpeace was clearly engaged in protected speech on a matter of public interest, and Resolute failed to show a probability of success as a matter of law. Thus, Greenpeace wins the anti-SLAPP motion as well (on state law claims). And, thus, Resolute will now have to pay Greenpeace's legal fees. Of course, the court did allow Resolute the ability to file an amended complaint, and if that fails (as seems likely) Resolute may still appeal. However, I'd be quite surprised if the 9th Circuit ruled differently. This appears to be a fairly straightforward SLAPP case, just with a RICO twist.

Of course, just a couple months earlier, while this case was still pending, a company called Energy Transfer Partners -- which might be more well known as an organization behind the controversial Dakota Access Pipeline -- filed a strikingly similar lawsuit against Greenpeace (and others, including Earth First). This one begins:

This case involves a network of putative not-for-profits and rogue eco-terrorist
groups who employ patterns of criminal activity and campaigns of misinformation to target
legitimate companies and industries with fabricated environmental claims and other purported
misconduct, inflicting billions of dollars in damage. The network’s pattern of criminal and other
misconduct includes (i) defrauding charitable donors and cheating federal and state tax
authorities with claims that they are legitimate tax-free charitable organizations; (ii) cyberattacks;
(ii) intentional and malicious interference with their targeted victim’s business relationships; and (iv) physical violence, threats of violence and the purposeful destruction of
private and federal property. Energy Transfer is the latest legitimate business targeted by this
network.

Incredibly, even though Greenpeace is the first named defendant, the lawsuit mostly focuses on other groups, like Earth First using what the filing calls "the Greenpeace Model" and only mentions in passing that Greenpeace was supportive of the Dakota Pipeline protests and organized some donation drives.

As you read through the lawsuit, it really reads like those who wrote it believe that getting attention for your protests is somehow illegal.

One of the ways the corrupt organizations conceal their true operations is to create
the illusion that their “campaigns” and high-profile “events” are grassroots actions by volunteers
and local “victims” who are spontaneously rallying together for the promoted cause. In fact,
these events are organized, funded, and produced by these corrupt ENGOs to create sensational
media attention and drive traffic and donors to their websites. Wolfpacks of corrupt ENGOs
regularly collaborate on these manufactured attacks, including “old-line” ENGOs like
Greenpeace and radical and fringe eco-terrorists who engage in disguised direct actions
involving violence, property, and business destruction, and fabricated claims and “evidence” of
misconduct by those targeted by the campaigns. These radical fringe groups create public
spectacles and generate fodder for putatively legitimate environmental organizations to trumpet
via-press releases and use as the basis to disseminate a parade of falsehoods deployed as part of a
plea to the general public to “get involved” by donating or taking their own, more benign, direct
action such as placing calls, or writing letters. Thus, at the heart of this fraudulent scheme are
fundamental lies as to what these ENGOs do, their substantial funding, well-organized
structures, powerful influences, and purposefully coordinated activities designed to create the
appearance of an independent “grassroots” uprising by the people. These lies are perpetuated on
donors, tax authorities, targets and their critical market constituencies, and the public at large.

Again, even if you disagree with Greenpeace's (and others') positions and/or tactics, it's pretty crazy to argue that they're illegal in any way, let alone a form of racketeering. Much of the rest of the filing reads like an advertisement for the Dakota Access Pipeline and how wonderful and safe and amazing it will be. It seems almost written more for public consumption than to make any kind of legal argument. There's also a section on cyberattacks, in which Energy Transfer Partners argues that silly Anonymous videos, which include doxing (and, yes, the lawsuit complains of "doxing") are all a part of the grand RICO conspiracy. You'd think that someone would inform these lawyers that anyone can just declare themselves a part of Anonymous and do what they want. It's like the opposite of an actual conspiracy. And while it does appear these may have lead to DDoS attacks on Energy Transfer, we've discussed before how DDoS can be seen as a form of protest -- i.e., a form of protected expression. And, here, there's no way to tie such actions back to organizations like Greenpeace anyway.

In this case, Energy Transfer is arguing that its damages are $300 million -- meaning a potential $900 million award should it prevail -- a sum that likely would put Greenpeace completely out of business. Importantly, the lawsuit was filed in North Dakota, which has no anti-SLAPP law and no caselaw around anti-SLAPP issues. So, this should be yet another reminder for why all states need stronger anti-SLAPP laws and we need a federal anti-SLAPP law, as soon as possible.

Oh, and in case you're wondering, yes, the lawyers on this filing are also from Trump's favorite law firm. It's the same Michael Bowe from Kasowitz.

from the this-is-a-problem dept

When the jury verdict against Gawker came down a year and a half ago, we warned of how problematic it was. We pointed out that it was a big dealeven if you absolutely hated Gawker and wanted to see them destroyed. Because, as we noted, the playbook used against Gawker could be used against lots of other publications.

And it's clearly impacting a number of others as well. A couple months ago, we wrote about how the "Gawker Effect" had made it very difficult for a huge investigative piece on R Kelly "holding women against their will" by Jim DeRogatis (a music reporter who has broken a number of R Kelly related stories over the years) to find a home to get published. Lots of publishers wouldn't touch it, not because the reporting wasn't solid, but because they didn't want to face the possibility of libel lawsuits, no matter how silly.

This is happening more and more often these days, including over important stories. Over at the Columbia Journalism Review, Kim Masters has a thoughtful, but depressing, article about how this "Gawker Effect" nearly killed another key story about sexual harassment in Hollywood -- involving Amazon exec Roy Price (who runs Amazon's Hollywood efforts) allegedly sexually harassing Isa Hackett, a producer on the Amazon hit show "The Man in the High Castle." The article was eventually published at The Information (behind a paywall). Last month, there was an article at Recode speculating that other publications passed on the story because Price, like Hulk Hogan (and like Harvey Weinstein and like Shiva Ayyadurai, the plaintiff in a lawsuit against us), employed lawyer Charles Harder. In the Recode piece, The Information's CEO, Jessica Lessin is quoted as saying that other publications passed because of threats from lawyers:

Lessin, referencing the Masters story, wrote that “we recently published a version of a story that three other publications passed on after very high-priced lawyers promised to sue them."

The Recode piece also quotes people from other publications who argued that there were other reasons for passing -- including that the earlier versions of Masters' story didn't have enough on-the-record sources. For what it's worth, one of the publications that passed -- the Hollywood Reporter -- recently made new headlines in this story by getting an interview with Isa Hackett, in which she revealed more details about Price's behavior towards her.

In the CJR piece, Masters shares more of the details of what happened behind the scenes, and how pressure was applied, via legal threats, to try to kill the story. It's at least marginally troubling that she notes it wasn't just Charles Harder who was making the threats, but also well-known lawyer Lisa Bloom. Bloom was, somewhat famously, also part of Harvey Weinstein's "legal team" which struck many people as odd, since her reputation was for representing the victims of sexual harassment and assault, not the other side. A few days after the Weinstein stories came out, Bloom said she was no longer working for Weinstein (also, recently, Harder claimed he has also stopped working for Weinstein despite earliler promising a lawsuit). She told the Hollywood Reporter, she worked with him to "change the way these stories go." And, more specifically to avoid the pattern of "when the story comes out, attack the accuser, deny, deny, deny, and fight like hell" because, as Bloom told THR: "I know how damaging that is to them, how hurtful, how scary. It’s emotionally devastating." Over the weekend, she told Buzzfeed something similar:

“All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

But Masters notes that Bloom and Harder together threatened the reporting she did on Price:

People in Hollywood and the media world were surprised my byline ended up in The Information, given that I worked at The Hollywood Reporter. (My editor there, Matthew Belloni, said in a Recode article about my difficulties getting the story published that “any suggestion that a story on this topic didn’t run because of outside pressure would be false.”) THR did allow me to shop the story elsewhere, but it came with a guaranteed threat of litigation from Price’s attorneys. Over the weeks that would follow, as I began searching for a home for my scoop, Harder and Bloom convinced every publication that considered my story that they weren’t just threatening legal action but would indeed sue.

Perhaps that threat was so convincing because Harder had handled Hogan’s devastating suit against Gawker with backing from billionaire Peter Thiel. In her zeal to protect her client—who has yet to address any of the allegations in my piece publicly—Bloom claimed that I had turned on Price after he rebuffed my demand to have Amazon underwrite The Business, the public-radio show that I host on KCRW. I can’t guess who concocted that allegation, but I assume the idea was to establish a potential argument that I had behaved unethically and had a personal grudge against him and therefore didn’t care what the facts were. (Since Price is a public figure, his only hope of prevailing in court would be to argue that I published information I knew to be false or acted in reckless disregard of whether it was false.)

When I first read the claim in an email from Bloom, I was angry, but I also laughed because it was ridiculous. I’ve never discussed underwriting with anyone, even internally at KCRW. I don’t know the first thing about it. I’m told Bloom insisted she had proof, though of course none was produced. My editor at THR told her that the story was false, but she repeated it to other publications nonetheless. (Bloom on Thursday said she no longer is working with Price.)

Masters admits that the earlier work didn't yet have the full on-the-record statement from Hackett, which was necessary to make the piece publishable, but does note how much the legal hounding from Bloom and Harder made it that much more difficult to get a publication to go with the piece.

By the time I was done, I had talks with more than six publications and went through legal review at three. The anxiety is always high when there’s a threat of a lawsuit around a story, but this time, it seemed off the charts. At one point, an attorney reviewing the piece only sputtered when I asked her to explain what, exactly, was legally problematic with portions of the story that she wanted to delete. She literally could not construct a sentence to explain her reasoning.

There's a lot more in Masters' piece that is worth reading and that highlights just how damaging the Gawker Effect has become. Again, even if you absolutely hated Gawker and cheered its demise, you should be concerned with what it has wrought. Masters hopes that with the Weinstein story getting so much attention it will help "change the environment" and encourage more people to come forward, and to embolden more publishers to publish these kinds of investigative reports.

However, there's still a missing piece here. Masters is right that these legal threats are a problem, and hopefully the attention brought about from exposing sexual harassers will embolden more publishers to publish these articles, even in the face of coordinated legal threats -- but what we still really need are stronger anti-SLAPP laws in various states (some of which still have none, and many of which have very weak ones). Or, even better, a comprehensive federal anti-SLAPP law. Such a law would allow publications to have more confidence in publishing such exposes of bad behavior by the rich and powerful, since they could push back against bogus legal threats by noting that filing a lawsuit probably won't get very far, and almost certainly would force the plaintiff to pay legal fees. We've been calling for such a federal anti-SLAPP law for nearly a decade, and I hope we're not still calling for one a decade from now. Masters' story is yet more evidence that Congress needs to act, now.

from the round-two dept

We have a quick update today on the defamation lawsuit that Shiva Ayyadurai filed against us earlier this year. Last month, Judge Dennis Saylor dismissed the lawsuit, pointing out that everything we said concerning Ayyadurai's claim to have invented email (specifically us presenting lots and lots of evidence of email predating Shiva's own work) was clearly protected speech under the First Amendment. Unfortunately, despite us being a California corporation, Judge Saylor did not grant our separate motion to strike under California's anti-SLAPP law -- which would have required Ayyadurai to pay our legal fees.

Two weeks ago, Ayyadurai notified the court that he was appealing the dismissal, which we will defend against in court, and we are confident that we will prevail once again. On top of that, today, we've notified the court that we are cross-appealing the decision to reject our motions to strike under California's anti-SLAPP law. We have argued in court that this is an obvious SLAPP lawsuit -- an attempt by the plaintiff, a self-proclaimed public figure, to try to silence detailed, evidence-based criticism of his claims. We believe that the court improperly applied choice of law principles on which state's anti-SLAPP law should apply, and we look forward to making our case before the 1st Circuit appeals court on why California's anti-SLAPP law is the proper law to apply. We'll provide more updates as the appeals progress.

from the slappity-slapp-slapp dept

Oh, Charles Harder. Fresh off losing the lawsuit he filed against us on behalf of Shiva Ayyadurai, lawyer Charles Harder is right back at it. The NY Post was the first to report that Harder has filed a lawsuit in New York state court against Gizmodo Media Group and two of its employees: Anna Merlan and Emma Carmichael. Gizmodo Media Group is basically what used to be Gawker. After Harder sued Gawker into bankruptcy and Univision bought many of Gawker's assets, it put them into a new entity called GMG.

Obviously, we have some opinions concerning Harder and his increasingly long list of lawsuits against media properties -- so feel free to take our analysis with however many grains of salt are necessary -- but this appears to be a pretty clear SLAPP suit designed to create more chilling effects on free speech. There are many, many reasons why this lawsuit is almost certainly a total and complete dud. But, that doesn't mean it won't be costly and annoying for GMG (even with Univision's help) and the two named individual defendants. The lawsuit is a response to an article on the site Jezebel entitled Inside Superstar Machine, Which Ex-Members Say Is a Cult Preying on New York’s Creative Women. The lawsuit is filed on behalf of Greg Scherick and his company "International Scherick" -- which is also called "Superstar Machine."

You can read the article, written by Merlan, which details claims by multiple young women about how they were a part of an organization of sorts, run by Scherick, that was part motivational group and part... something else. Multiple women are quoted using the word "cult." Here's one clip, quoting a woman named "Rose":

“It seemed scary. Like something that somebody who doesn’t have a degree or an ability to diagnose people should be doing to someone. And I really wanted her out, too. I freaked out and called her boyfriend and was like, ‘We’re in a cult. You need to get [her] out.’ And she called me and screamed at me and told me I was never allowed to call her boyfriend.”

The article is detailed, and has many sources. The actual lawsuit doesn't seem to have much of a chance for a whole host of reasons. Many of the statements appear to be statements of opinion. Things like using the word "cult" have been held in other cases not to be defamatory. Not only that, but for the most part, the article was quoting others giving their opinions on International Scherick and "Superstar Machine."

There are some other problems with the lawsuit as well. It claims that the article was published by GMG on September 10, 2016. This is important, because New York has a one year statute of limitations on defamation. But... what's the date on the article?

Why yes, you're right. It says May 10th. That's past the statute of limitations. What Harder is trying to argue is that when Univision took over Jezebel following the purchase of Gawker's assets, it "republished" the item. September 10th, 2016 was day that the deal apparently became official. Except... that's not how this works at all. New York, like many states, has a "single publication rule" which says that the statute of limitations is from the original publication. There are some narrow exceptions where "republication" can restart the clock, but changing owners doesn't appear to be one.

Some other oddities in the lawsuit: despite claiming that Scherick was a bigtime "life coach" who nicknamed himself "International" and runs an organization called "Superstar Machine," Harder tries to argue that Scherick is not a public figure, and therefore a lower standard of defamation should apply.

Separately, as we've seen in other Harder lawsuits, the complaint tries to smear the reporter and the editor -- repeatedly focusing on (for example) comments made by the editor Emma Carmichael in the Hulk Hogan case against Gawker (again, where Harder represented Hogan). Eric Turkewitz, a NY-based lawyer we've quoted before, calls the complaint "odd" and points out that the only way he sees that Harder can win the overall case is if Harder/Scherick can prove the quotes in the article (listed in paragraph 27 of the complaint) were fabricated. And that's only if they can actually make the "republication" claim stick.

But, again, as we know all too well, sometimes the point of these sorts of defamation lawsuits appears to be more about creating a chilling effect for reporters and dragging them through the legal system. And, once again, this is why it's absolutely crazy that New York still has a very weak anti-SLAPP law. It's the media capital of the world, and it's incredible that the state has failed to update its anti-SLAPP laws to prevent these sorts of lawsuits.

from the the-first-amendment-means-something dept

As you likely know, for most of the past nine months, we've been dealing with a defamation lawsuit from Shiva Ayyadurai, who claims to have invented email. This is a claim that we have disputed at great length and in great detail, showing how email existed long before Ayyadurai wrote his program. We pointed to the well documented public history of email, and how basically all of the components that Ayyadurai now claims credit for preceded his own work. We discussed how his arguments were, at best, misleading, such as arguing that the copyright on his program proved that he was the "inventor of email" -- since patents and copyrights are very different, and just because Microsoft has a copyright on "Windows" it does not mean it "invented" the concept of a windowed graphical user interface (because it did not). As I have said, a case like this is extremely draining -- especially on an emotional level -- and can create massive chilling effects on free speech.

A few hours ago, the judge ruled and we prevailed. The case has been dismissed and the judge rejected Ayyadurai's request to file an amended complaint. We are certainly pleased with the decision and his analysis, which notes over and over again that everything that we stated was clearly protected speech, and the defamation (and other claims) had no merit. This is, clearly, a big win for the First Amendment and free speech -- especially the right to call out and criticize a public figure such as Shiva Ayyadurai, who is now running for the US Senate in Massachusetts. We're further happy to see the judge affirm that CDA Section 230 protects us from being sued over comments made on the blog, which cannot be attributed to us under the law. We talk a lot about the importance of CDA 230, in part because it protects sites like our own from these kinds of lawsuits. This is just one more reason we're so concerned about the latest attempt in Congress to undermine CDA 230. While those supporting the bill may claim that it only targets sites like Backpage, such changes to CDA 230 could have a much bigger impact on smaller sites like our own.

We are disappointed, however, that the judge denied our separate motion to strike under California's anti-SLAPP law. For years, we've discussed the importance of strong anti-SLAPP laws that protect individuals and sites from going through costly legal battles. Good anti-SLAPP laws do two things: they stop lawsuits early and they make those who bring SLAPP suits -- that is, lawsuits clearly designed to silence protected speech -- pay the legal fees. The question in this case was whether or not California's anti-SLAPP law should apply to a case brought in Massachusetts. While other courts have said that the state of the speaker should determine which anti-SLAPP laws are applied (even in other states' courts), it was an issue that had not yet been ruled upon in the First Circuit where this case was heard. While we're happy with the overall dismissal and the strong language used to support our free speech rights, we're nevertheless disappointed that the judge chose not to apply California's anti-SLAPP law here.

However, that just reinforces the argument we've been making for years: we need stronger anti-SLAPP laws in many states (including Massachusetts) and, even more importantly, we need a strong federal anti-SLAPP law to protect against frivolous lawsuits designed to silence protected speech. The results of this case have only strengthened our resolve to do everything possible to continue to fight hard for protecting freedom of expression and to push for stronger anti-SLAPP laws that make free speech possible, and not burdensome and expensive.

You have not heard the last from us on the issue of the First Amendment, free speech and anti-SLAPP laws -- or how some try to use the court system to silence and bully critics. Step one of this is our new Free Speech edition, which we announced just a few weeks ago, where we are focusing more of our reporting efforts on issues related to free speech and anti-SLAPP. We intend to do a lot more as well. For years, we've talked about these issues from the position of an observer, and now we can talk about them from the perspective of someone who has gone through this process as well.

Of course, if you have to face something like this, it helps to have great lawyers--and we're immensely grateful for the incredible hard-work of Rob Bertsche, Jeff Pyle and Thomas Sutcliffe along with the rest of the team at their firm, Prince Lobel Tye LLP.

Finally, I can't even begin to thank everyone who has supported us over the past nine months -- whether by kind words (you don't know how much that helped!) or through our survival fund at ISupportJournalism.com or by becoming a Techdirt Insider. We just passed Techdirt's 20th anniversary and while it's one thing to think that people like and support you, it's another thing altogether to see how people come out to support you when it matters most. And we were overwhelmed by the support we received over the past nine months, and the kind words and help that many, many people offered. It was beyond heartening, and, once again, it reinforces our resolve to continue to speak up for free speech and to do what we can to protect others' ability to speak out as well.

from the stopmakingfunofme.pdf dept

Last year, YouTube personality [add scare quotes as needed] Matt Hosseinzadeh (a.k.a., "Matt Hoss," "Horny Tony," "Bold Guy") sued H3H3 Productions (composed of YouTube personalities Ethan and Hilla Klein) for copyright infringement. His argument? Their video criticizing his pickup-lines-and-parkour video infringed on his registered copyright by using footage from his video. He decided to make his lawsuit even stupider by adding defamation claims after the Kleins criticized his legal threats.

After digging himself a $3,750 legal fee hole, Hoss's lawyer issued a cease and desist to the Kleins, demanding they:

Judge Katherine Forrest has issued her ruling [PDF] in the case and there's nothing in it for Matt Hoss. Hoss says copyright infringement. The Kleins say fair use. The judge says:

The key evidence in the record consists of the Klein and Hoss videos themselves. Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video; there is also no doubt that the Klein video is decidedly not a market substitute for the Hoss video. For these and the other reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair use as a matter of law.

The court further points out that criticism and commentary are perhaps the most solid foundation on which to build a fair use defense.

It is well-established that “[a]mong the best recognized justifications for copying from another's work is to provide comment on it or criticism of it.” Id. Indeed, the Second Circuit has held “there is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107,” including “criticism” and “comment.”

The court also takes apart Hoss's claim the Kleins' challenge of his takedown notice was somehow a violation of the DMCA.

The Ninth Circuit has held that, in submitting a takedown notification, “a copyright holder need only form a subjective good faith belief that a use is not authorized.” [...] In other words, a copyright holder is not liable for misrepresentation under the DMCA if they subjectively believe the identified material infringes their copyright, even if that belief is ultimately mistaken. See id. It is clear to this Court that the same subjective standard should apply to the “good faith belief” requirement for counter notifications. If the same standard did not apply, creators of allegedly infringing work would face a disparate and inequitable burden in appealing an online service provider’s decision to remove or disable access to their work. Given the fact that the statutory requirements for takedown notices and counter notifications are substantially the same, the DMCA plainly does not envision such a scheme.

The court then dismisses the defamation claims, which targeted statements made by the Kleins in their video discussing this very lawsuit. (Hosseinzadeh added the defamation claims in his second amended complaint.) Hoss claimed being portrayed as someone who sues people when he's criticized was defamatory -- an assertionhe made in this lawsuit he filed against people who criticized him. The court points out, redundantly, that the statements made by the Kleins were (so very obviously) "substantially true." Even if they weren't "substantially true," they would be inactionable statements of opinion.

This spectacular loss on both fronts should be a warning to others who think they can sue their critics into silence. But it probably will do little to deter either of the stupid actions Hoss engaged in: bogus DMCA takedown demands and a laughable lawsuit. As always, hope springs eternal in the butthurt.

from the that's-not-how-any-of-this-works dept

Florida. It's always Florida. Last time it was the city of Tamarac, Florida making bogus trademark claims to try to silence a blogger. And this time, it's the city of Coral Gables (basically a part of Miami). Apparently the powers that be in Coral Gables are not fans of free speech if it involves people disagreeing with their decisions. And thus, they're willing to send completely bogus threat letters to Facebook to silence anonymous critics, followed up by filing a lawsuit against Facebook to identify them.

I first came across this story thanks to Alfred Spellman, who pointed me to an article by Jessica Lipscomb about the city suing Facebook, and there have been similar stories in the Miami Herald as well. Reading those stories still left me scratching my head a bit, and part of the issue (again!) is Florida. So I've tracked down the full complaint and also emailed the city attorney filing the lawsuit with questions, as I discuss below.

But first, let's back up and explain what's happening. Recently, the city decided to hire private unarmed security guards, which has created some controversy, especially with the local police who aren't happy about these interlopers. So it shouldn't have been that surprising that someone started posting on Instagram and Facebook criticizing the city. From the Miami Herald:

In May, groups called Protect Coral Gables and "Coral Gables residents who care" posted a video on Facebook and Instagram that shows one girl attacking another, knocking her to the ground, then kicking her and stomping on her head. Three men in vests marked “security” watch but don’t intervene.

The posts said "$610,000 tax dollars wasted on security guards in Coral Gables" and described the video saying that the "security guards can only watch as a girl is beaten."

"Don’t let this happen in Coral Gables. Call your elected officials and tell them to step up to the plate and protect our families. Demand that they hire certified police officers."

The video, for what it's worth, was apparently from a few years ago in Seattle -- which is mentioned seven seconds into the video in question -- though the city of Coral Gables insists that the video is misleading and people are implying it's happening in Coral Gables. From the legal complaint, we can see what the city was mad about (though I don't understand why they're so mad about it, as it appears they're a bunch of thin skinned bullies who can't take even the slightest criticism).

On Instagram, they were upset about this ad along with the text above:

That seems like pretty normal "citizen speaking up on a matter of public interest" social media content. And, yes, it does seem noteworthy that the post appeared to have merely 59 views at the time the Coral Gables government decided to take action.

The Facebook complaint is even more ridiculous. They're upset about two Facebook groups. The first was called "Protect Coral Gables" and the second "Coral Gables Residents Who Care." And the main complaint is that the Facebook group uses the (trademarked) logo of Coral Gables. From the complaint:

I'm at a loss as to how Coral Gables attorneys could possibly think this is infringing. These people are commenting on Coral Gables policies and have created a group about Coral Gables, which is pretty obviously done by concerned citizens rather than the government. There's no likelihood of confusion here. And, importantly, they're not using the logo in commerce, so there's no trademark issue at all. Oh, and we should also point out that the Lanham Act forbids cities from trademarking their logos.

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it... [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof

So, yes, the USPTO may have registered Coral Gables' logo trademark, but it is obviously invalid under the law.

The whole thing appears to be that Coral Gables officials are upset that their own constituents are criticizing their decision and they decided to "do something about it."

I mean, it's fine to be unhappy about it, but it's another thing entirely to try to silence and then identify those critics. But, hey, Florida. And here's where things start getting stupid. It appears that the city started searching for any excuse to try to silence and/or identify the critics. In one report, they claimed it was "defamation" or "deception":

"It upset me when I saw it that someone … is trying to defame the city," said Commissioner Frank Quesada. "It’s meant to deceive, it’s meant to scare."

But, that's silly. There's no defamation. There's no deception. Furthermore, as the Supreme Court clearly states in the famous First Amendment case New York Times v. Sullivan, the government cannot sue for defamation:

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.

Now, that's coming from a Commissioner, not the city attorney, so you'd think that the city attorneys would educate Quesada. They did the opposite.

In one of the articles, Coral Gables' city attorney Craig Leen makes this ludicrous statement:

"They’re free to put any statement they want to make but what they can’t do is put a video of a terrible incident that did not happen in Coral Gables and make it seem like it happened in Coral Gables," Leen said.

Except... they didn't. First, the video identifies itself as happening in Seattle in the first seven seconds. Second, the exhibit in Leen's own lawsuit clearly says "Don't let this happen in Coral Gables" which pretty clearly states that the events in the video happened elsewhere. Here's yet another exhibit showing "don't let this happen in Coral Gables" appearing directly above the video:

But I'm getting ahead of myself. Before the city filed the lawsuit, deputy city attorney Miriam Ramos sent a cease and desist letter to both Instagram and Facebook (and, yes, Instagram is owned by Facebook), claiming that the social media posts violated the city's trademarks, even though they clearly do not as explained above. Not only did she send a cease and desist, she claimed that if they failed to comply, she would magically fine them $500 per day.

Instagram General Counsel,

It has come to the attention of the City of Coral Gables that an Instagram page/ad exists under the name "Protect Coral Gables." The page/ad contains an emblem that is a trademark owned by the City of Coral Gables (see attached as Exhibit A). The trademark is registered in the United States (Registration No. 4,307,912). Further, the page/ad contains content that is erroneous and misleading, including a video of an attack on a woman.

We, therefore, order that your company immediately cease and desist from allowing the use of our trademarked logo on the "Protect Coral Gables" Instagram page/ad and remove the erroneous and misleading content contained in the page/ad. Pursuant to Coral Gables Ordinance 2016-059, failure to comply with this letter will subject Instagram to a code enforcement citation carrying a fine of $500 per day of violation.

Sincerely,
Miriam S. Ramos
Deputy City Attorney and City Prosecutor

So... there are a whole boatload of problems with this cease and desist. First, as already explained, what was done by the people protesting the decision was clearly not use in commerce and similarly unlikely to confuse. And, the city can't trademark its logo. In short, it's not trademark infringement in any way, shape or form. Second, the last sentence of the first paragraph is painfully misleading, playing up the fact that the video shows "an attack on a woman" but leaving out all context and almost certainly implying that the video violates the company's terms of service (which it does not).

Finally, the whole $500/day fine thing. As we know, CDA 230 has made it quite clear that Instagram and Facebook can't be fined over a user's speech (which is likely why they try to pretend it's a trademark violation, which is exempted from CDA 230). But, what the hell is Ordinance 2016-59? Well, I'll tell you that the city doesn't make it easy to figure that out, but I finally tracked down the ordinance, which became Section 2-203 of the code of the city of Coral Gables, and it says:

(a) The city attorney is authorized to issue cease and desist letters for violation of the City Code, Zoning Code and any other applicable law where such violation causes harm to the city, its residents or its businesses.
(b)
It shall be unlawful for any person or entity to disobey the demand made by the city attorney or his/her designee, on behalf of the City of Coral Gables, in a cease and desist letter.
(c)
Failure to obey the demand made in a cease and desist letter shall result in the issuance of a code enforcement citation, punishable by a fine of $500.00 per day.

But, uh, what Facebook and Instagram did is not a violation of City Code or (especially) Zoning Code. It's not a violation of any "applicable law." This is just a city attorney trying to talk big, and even then can only threaten a $500 fine normally used for those with zoning violations -- targeting one of the largest companies in the world. Good luck with that.

Instagram replied to Ramos, noting that the user appeared to have removed the content already themselves, so there was no problem. Ramos responded, somewhat hilariously, saying that if the ad reappeared, she'd start fining them $500 per day. Can you say "prior restraint"? Perhaps they don't teach that where Ramos went to law school.

On behalf of the City of Coral Gables, the cease and desist letter remains in effect and if another ad is published using our trademark, Instagram will be fined $500 per day.

Please provide this email to your general counsel and ask them to respond to us.

Instagram then responded, finally pointing out that there was no trademark infringement.

Hi,

Thanks for your report. Based on the information you've provided, it is not clear that the content you've reported infringes your trademark rights. The reported party appears to be using your trademark to refer to or comment on your goods and services.

For this reason, it does not appear that the reported content is likely to confuse people as to source, sponsorship or affiliation, and we are unable to act on your report at this time.

Thanks,

Liam
Intellectual Property Operations
Instagram

Hats off to you, "Liam." Unfortunately, the enforcement folks at Instagram's parent company, Facebook, didn't bother to look at what was happening, and caved in immediately:

Hi,

Thanks for bringing this matter to our attention. We removed or disabled access to the content you reported for violating the Facebook Statement of Rights and Responsibilities. We understand this action to resolve your intellectual property issue.

Facebook: you got this one wrong. There's no violation there.

And, either way, what benefit did Facebook get for complying with Coral Gables' censorial bullying? It got dragged into court. Because after all this, the city filed a complaint for a "pure bill of discovery." You may recall the concept of Florida's "pure bill of discovery" as it played a prominent early role in the Prenda saga. It's a generally antiquated law to obtain discovery (which is legalese for "force you to hand over info"). Indeed, there's some argument that John Steele of Prenda moved from Illinois to Florida early on in Prenda's history in order to use Florida's pure bill of discovery to uncover the names of people he wanted to shake down. Courts eventually put a stop to it, but here the City of Coral Gables is trying to use it to identify anonymous critics.

The complaint repeats the misleading claim that the use of the logo is trademark infringement, as well as the false claim that the Instagram ad is "erroneous and misleading." It is neither. Hell, the city's cease-and-desist and complaint are both a hell of a lot more erroneous and misleading than anything in the Instagram ad. And, again, the language here hints at a possible defamation claim which is not allowed under the First Amendment, as made clear by NYT v. Sullivan. Do the city attorneys of Coral Gables not know this... or do they not care?

Then the complaint demands "any and all records identifying the name, address, telephone number of the entity and/or individual(s) responsible" for posting that content.

Let's be clear: this is complete unconstitutional bullshit. I've emailed city attorney Craig Leen as well as the outside lawyer who filed the complaint, Anna Marie Gamez, asking them to explain how any of this could possibly pass constitutional muster. The Supreme Court seriously frowns on this kind of thing. Beyond the NYT v. Sullivan mentioned above, in McIntyre v. Ohio Elections Commission (which involves a government body going after someone for handing out anonymous pamphlets concerning an issue of public concern), Justice Stevens wrote in the opinion:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

I emailed city attorney Craig Leen (as well as the city's outside attorney, Anna Marie Gomez of the law firm Holland & Knight). Just as I was finalizing this post, Leen responded to my emails insisting that the complaint has no First Amendment problems and that their trademark claims are legit:

I want to assure you that the City views the bill it filed as meritorious, and certainly not frivolous. The City also views its bill as consistent with the First Amendment and trademark law.

When asked how, Leen gave some boilerplate language about trademark:

The City’s trademark was used in the profile pictures as if Coral Gables was sponsoring the site. This does not fall under fair use. It is an attempt to appropriate Coral Gables’ mark to induce people to view the post and causes confusion as to whether this highly misleading post is being sponsored or endorsed by the City of Coral Gables. For example, if you look at Exhibit E to the Complaint, at the attachment to the cease and desist letter, it shows the word “Sponsored” right next to the City of Coral Gables mark. The City is seeking to protect its mark and has a right to do so.

Again, this is wrong. Even setting aside the fact that the Lanham Act forbids cities from trademarking their logos, the exhibit he mentions (Exhibit E) does not at all show the word "sponsored" next to the City of Coral Gables mark, and certainly not in a manner that has a likelihood to confuse. Remember, this is the Instagram post (shown above) that clearly shows that it's from a group called "Protect Coral Gables" and the text of the image and the text beneath the image make it blatantly obvious that this is someone protesting the City's actions, not coming from the city itself. The fact that it is a "sponsored" post is meaningless here. This is clearly people of Coral Gables using their right to petition the government.

And the city of Coral Gables is trying to stomp that out. This is very clear abuse of the First Amendment and Leen should be ashamed of trying to pretend otherwise.

It appears that the city of Coral Gables is quickly shooting to the top of the list of thuggish, censorial cities, whose officials can't handle even the slightest criticism of their decisions. You would hope that, at some point, someone explains to them the nature of the First Amendment as well as two of the most famous cases from the Supreme Court that clearly bar this action. And it doesn't matter at all how you feel about the initial action (the hiring of security guards). Indeed, as many would guess from how we cover police issues here, I tend to think hiring unarmed security guards is a much better solution than hiring more armed police officers. But how can a city and its leaders have such thin skins that they'd be willing to trample all over the First Amendment over a tiny bit of criticism seen by fewer than 60 people (including the city's own lawyers)?

Oh, and let us not forget that Florida's got a nice (relatively new) anti-SLAPP law that seems tailor made for this kind of thing, which might mean that Coral Gables taxpayers will be footing Facebook and Instagram's attorneys' fees, should they seek to use the law. If there was already concern about Coral Gables wasting money on security guards, I can't imagine that it will go over all that well that it's also wasting it on frivolous witch hunts for anonymous critics online.

from the dodge-one-bullet dept

The attacks on Section 230 of the CDA are coming in all directions these days, unfortunately. Last year, we wrote about a series of troubling rulings in California that opened up the possibility of chipping away at 230's important protections of internet services. If you're new here, Section 230 says you can't blame an internet service for what a user does with that service. This should be common sense, but because people like to sue the big companies rather than the actual people doing stuff, it's necessary to stop bogus lawsuits. A little over a year ago, we wrote about one of these troubling rulings in California, where a judge ruled that publicity rights aren't covered by CDA 230.

The case is pretty complex, but the very simplified version is that a "country rap" musician named Jason Cross, who uses the stage name Mikel Knight, has made a name for himself with a weird "street team" operation that travels around the country aggressively trying to get people to buy his CDs. Some of the people who were part of the street team (or possibly who knew them) weren't happy with the way Cross treated them and set up a Facebook group: "Families Against Mike Knight and the MDRST" (MDRST = Maverick Dirt Road Street Team -- which is what Cross calls the street team). Cross sued in Tennessee to try to find out who was behind the group and demand the page get taken down. He then also sued Facebook in California because why not?

Facebook hit back with an anti-SLAPP motion, pointing appropriately to CDA 230. The court accepted those arguments on some of the claims, but rejected it on the publicity rights claims from Cross, saying that publicity rights are "intellectual property" and intellectual property is exempt from CDA 230. That's... wrong, basically. And the 9th Circuit has clearly said that CDA 230's exemption of intellectual property only applies to federal intellectual property law. Publicity rights are state law.

Thankfully, as Eric Goldman lets us know, the California state appeals court has rejected the lower court's ruling, though for other reasons than that the lower court misunderstood CDA 230. Instead, the court ruled (also correctly) that publicity rights weren't even at issue in this case. It notes that California's publicity rights law requires the party (in this case, Facebook) to have "used" the plaintiff's identity. But that didn't happen here. In fact, the only thing argued is that Facebook put ads on these pages. That's not a publicity rights issue.

Nowhere does Knight demonstrate that the advertisements appearing next to the pages used his name or likeness, or that any of the advertisements were created by, or advertised, Facebook. All he claims is that Facebook displayed advertisements next to pages created by third parties who were using Knight‘s name and likeness to critique his business practices—and their allegedly fatal consequences. While Knight claims that ―Facebook continues to place ads on all the unauthorized Facebook pages, he necessarily concedes that his name and likeness appear not in the ads themselves, but in the content posted to Facebook by third parties.

[....]

The gravamen of Knight‘s complaint is that Facebook displayed unrelated ads from Facebook advertisers adjacent to the content that allegedly used Knight‘s name and likeness—content, Knight concedes, created by third-party users. He has not, and cannot, offer any evidence that Facebook used his name or likeness in any way.

[....]

In sum, the evidence demonstrates that Facebook has not used Knight‘s identity, and any right of publicity claims fail for this reason alone. Likewise for failure to show appropriation.

The court still isn't done:

Knight has not even alleged—let alone shown—that any advertiser used his name or likeness. He thus cannot establish that anyone, let alone Facebook, obtained an advantage through use of his identity. Indeed, the evidence Knight submitted below demonstrated either that no advertisements appeared alongside the pages at issue, or that the advertisements that did appear adjacent to the content posted by third parties made no use of his name or likeness. At most, Knight has shown that Facebook allowed unrelated third-party advertisements to run adjacent to pages containing users‘ comments about Knight and his business practices. This is insufficient.

The court chooses not to address the more basic issue of publicity rights under CDA 230.

The rest of the ruling is interesting in its own right, as Cross had also appealed the parts upholding Facebook's anti-SLAPP motion, but fails badly. The court notes that it's fairly obvious that the issue involves a topic of public interest, despite Cross's claims to the contrary. And then there are some weird claims attempting to piggyback on the Barnes v. Yahoo case from years back, in which Yahoo lost its 230 immunity because an employee directly promised to remove certain content. Cross tried to argue that Facebook's terms of service promise it, too, will remove content. But... that's very different, and not what Facebook's terms of service actually say. Separately, Cross claims (to make Barnes more applicable) that Facebook privately did communicate to him that it would remove content. The court's not buying it (neither did the lower court):

Contrary to Knight‘s assertions, the complaint does not arise from "private" statements or promises made to Knight in Facebook's terms. Indeed, similar arguments made by other plaintiffs against Facebook have been rejected by district courts, in language directly applicable here: "while Facebook‘s Terms of Service 'place restrictions on users‘ behavior,' they 'do not create affirmative obligations‘ " on Facebook....

Plaintiffs' brief states that "As a requirement to signing up for Facebook, Mr. Knight had to accept Facebook's Terms of Service. Among other things, the Terms of Service—along with certain 'supplemental terms' specifically incorporated by reference—prohibited harassing and violent speech against Facebook users. These supplemental terms also made an explicit promise to Knight: 'We remove credible threats of physical harm to individuals.' Facebook also stated that '[w]e want people to feel safe when using Facebook,' and agreed to 'remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety.'"

As will be seen, there was much language in Facebook's terms and conditions providing for Facebook's discretion vis-a-vis content on its pages. But even if statements in Facebook's terms could be construed as obligating Facebook to remove the
pages—which plaintiffs have not demonstrated—it would not alter the reality that the source of Knight's alleged injuries, the basis for his claim, is the content of the pages and Facebook's decision not to remove them, an act "in furtherance of the . . . right of petition or free speech."

The court also dings Cross for claiming that Facebook's terms say stuff they do not:

...even if Facebook's terms and community standards were the relevant statements or conduct at issue here, Knight has not identified any "representation of fact" that Facebook would remove any objectionable content. Indeed, the actual terms are to the contrary, providing in essence that Facebook has the discretion to remove content that violates Facebook policies. By way of illustration, the terms include that: "We can remove any content or information you post on Facebook if we believe that it violates this Statement or our policies." The terms also make clear that Facebook is not responsible for "the content or information users transmit or share on Facebook," for "any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook," or for "the conduct, whether online or offline, of any user of Facebook." As Facebook sums it up, "We do our best to keep Facebook safe, but we cannot guarantee it."

So, in the end, this is a good result, tossing out last year's bad ruling, though skipping over the CDA 230 question. And, as Eric Goldman notes, that keeps things at least a little murky:

Publicity rights law is a doctrinal mess. Courts routinely struggle with how to apply publicity rights laws to ad-supported editorial content that references or depicts a plaintiff. The appellate court got to the right place, but I don’t have much faith that future courts will do the same.